Times Sues Prosecutor on Phone Records

By ADAM LIPTAK

Published: September 29, 2004

The New York Times filed a lawsuit yesterday in federal court in Manhattan to stop a federal prosecutor from inspecting telephone records of two Times reporters. The suit contends that the records are covered by the reporters' privilege, a legal doctrine that allows reporters to protect their sources in some circumstances.

''The government's attempt to obtain our phone records is an unprecedented and unwarranted fishing expedition aimed at obtaining dozens of our reporters' confidential sources after 9/11, most of whom had nothing to do with the prosecutor's investigation,'' said George Freeman, an assistant general counsel of The New York Times Company.

The prosecutor, Patrick J. Fitzgerald, the United States attorney in Chicago, is investigating a leak and has said he intends to seek the reporters' records from their phone companies. Mr. Fitzgerald contends that one or more government officials alerted the reporters, Judith Miller and Philip Shenon, to an imminent search of the offices of an Islamic charity. That disclosure, he has written to lawyers for The Times, was probably criminal.

Prosecutors have also been critical of the paper's reporting. A call from Mr. Shenon to the charity on the evening of Dec. 13, 2001, the day before the planned raid, ''resulted in the destruction and removal of information,'' according to a letter from James B. Comey, the deputy attorney general, to lawyers for The Times on Thursday.

The reporters say they were engaged in routine newsgathering.

The charity, Global Relief Foundation of Bridgeview, Ill., has denied involvement with terrorism. It sued The Times for libel in November 2001, arguing that the paper had suggested such involvement in reporting on government investigations of the charity. The trial court's dismissal of that suit is on appeal.

In a letter in August to Mr. Comey, two lawyers for The Times, Floyd Abrams and Kenneth W. Starr, wrote that the records the government seeks, for some 20 days in the fall of 2001, might reflect hundreds of communications between the reporters and their sources ''on a vast array of vitally important and controversial matters.''

Randall Samborn, a spokesman for Mr. Fitzgerald, declined to comment.

Efforts to uncover reporters' confidential sources through telephone and travel records held by third parties are unusual but not unheard of.

Ms. Miller has also been subpoenaed in an investigation of the disclosure of the identity of a covert C.I.A. officer, Valerie Plame. Mr. Fitzgerald is the special prosecutor in that case.